Reader's Watchdog: More than a fine for fatal accident?

Oct. 4, 2013

Investigators survey the aftermath of the accident that killed Sonny McElwee last February. Airbag data reports of the crash show the FedEx van was going 65 mph five seconds before hitting McElwee's vehicle, which was going 27 mph. / Special to the Register

McElwee and his family contacted The Des Moines Register Reader’s Watchdog with a question that has haunted them ever since that awful day:

How is it that the Warren County attorney’s office only charged the other driver in the crash with a simple misdemeanor that resulted in a $750 fine?

Some of the evidence gleaned in the case, from airbag computer modules that store crash data, showed Nicholas Raymond Kritz, a contract driver for FedEx, was going at least 67 mph up a hill in a 55 mph zone just before colliding with the Chevrolet TrailBlazer driven by Alexandrine “Sonny” McElwee.

Reports from the Iowa State Patrol, which investigated the accident, also say Kritz crossed “left of center” into McElwee’s side of the gravel road while headed east in rural Warren County, and that evidence showed he was not wearing a seat belt.

Sonny McElwee was traveling at 27 mph and was wearing her seat belt, the evidence showed.

The force of the crash was so great the seat tore loose from the frame of the McElwees’ red SUV. Sonny McElwee, 74, suffered 14 broken ribs, two broken wrists, broken ankles, a broken pelvis and elbow before she was flown to Mercy Medical Center in Des Moines. She died a little over two hours later.

In the days following the accident, family members said information from prosecutors was almost nonexistent.

Daughter Conny Brown said the family was shocked when it learned last summer that Kritz, a driver hired in spite of past convictions for drunken driving and speeding, was only being charged with “failure to yield half of a roadway.”

“They told us they couldn’t prove it was a willful act,” she said.

By Iowa law, Kritz’s actions needed to be “reckless and wanton” for him to have faced a tougher charge. Assistant Warren County Attorney Doug Eichholz said there was no doubt Kritz was speeding or that he crossed the center of the road. The prosecutor said attorneys reviewed case law and statutes for reckless driving and homicide by vehicle due to recklessness. But Kritz’s actions did not meet the statutes outlining those crimes.

“We sympathize with the family,” he said. “We want to do what’s best for them. I know they are grief-stricken.

“She sounds like a great person, but we’re stuck with the statutes as they are written. And the way they are now, I don’t think we would have gotten past a motion for a judgment of acquittal.”

Robert Rigg, a Drake University law professor who has experience in the Polk County Public Defender’s Office, said the prosecutors’ decision, as hard as it was for the family, was likely correct. Any prosecutor, he said, would have been hard-pressed to charge Kritz with a more severe crime like involuntary manslaughter or even reckless driving under current Iowa law.

“The fact that someone is speeding is not enough,” Rigg said. “Recklessness under the law is conduct that shows willful and wanton disregard for the safety of others.”

In past court cases, Rigg said, courts have held that dozing off and running a stop sign is not enough to constitute recklessness, nor is improper passing that results in death.

He added: “It’s a horrible situation, but people have to keep in mind it is an accident. People tend to move to the center of gravel roads to get better traction.”

McElwee and his daughters, Conny and Marija, believe it was absolutely reckless for a professional driver to be going that fast up a hill on a damp country road.

The fact that neither Kritz, nor the company he worked for, said or did anything afterward suggested to them a lack of remorse.

On Thursday, I called and interviewed Nicholas Kritz. The 34-year-old said nothing could be further from the truth.

“I really do feel for the family,” Kritz said. “I think of her every day. I wanted to give my condolences immediately, but due to the legal shenanigans, you are advised against that.”

Kritz, who has undergone three surgeries on broken ankles since the crash, said he’s not positive he was wearing his seat belt, but he did not feel he was speeding at the time of the crash.

His speedometer stopped at 58 mph, three miles over the limit, according to one investigation report.

He says, “I believe I was going closer to the speed limit than I was according to the black box (in the airbag console). My driving record is not perfect, but it’s been a long time since I’ve had a ticket. And I’ve had no previous accidents.”

Kritz said the gravel road was wet and spongy that day, and there was no clear division between two sides. He said he and McElwee saw each other just a split second before the crash and there was little either could do.

Measurements taken by law enforcement afterward showed he was about 27 inches, or two tire widths, into McElwee’s side of the road, Kritz said.

Kritz insisted he did what he could to come to McElwee’s aid, in spite of his own injuries. “I made the call (to 911) and went over to her window and I talked with her,” he said. “When I first got down there, she said, ‘I’m sorry.’ … But I could tell she was in shock. Initially, she was confused. But then she became more lucid. She asked if I was OK. I asked her if she was OK. I said we were going to (get) help, that help was on the way.”

Kritz said he comforted McElwee until the paramedics arrived, and then they were taken to separate hospitals. He said learned McElwee died after he came out of surgery. “It was a tragic, tragic accident,” he said. “It was one of those things that changes your whole life in a split second. But it wasn’t reckless. It wasn’t negligent. I wasn’t texting. I was just doing my job.”

Kritz added: “In hindsight do I wish I wouldn’t have been going” — but then he stopped.

Kritz, who is single, said he has been unemployed since a judge found him guilty of a simple misdemeanor in the case in August. His conviction means he will not be able to be a professional driver again anytime soon, he said.

Kritz said he can only walk with a cane or crutches and it’s unclear whether he will need more surgery.

Eichholz said the county attorney’s office still wants to help McElwee’s family by providing victim services such as grief counseling. Rigg said if the family chooses, it could sue Kritz and his employer in civil court. That avenue would require they prove negligence, a lower standard than would be required in criminal court for involuntary manslaughter.

But even if prosecutors had succeeded in leveling a tougher criminal charge in the case, it would not necessarily have generated a different outcome. Court records show many people convicted of involuntary manslaughter still wind up with probation.

Kritz said he can only imagine the pain and suffering McElwee’s family is going through, and he can only say he’s deeply sorry.

“I feel terrible,” he said. “But would they really rather have me in prison? Bitterness won’t bring her back or do anybody any good. I’m a good guy. … It was a horrible accident.”

Lee Rood’s Reader’s Watchdog column helps Iowans get answers and accountability from public officials, the justice system, businesses and nonprofits. Contact her at lrood@dmreg.com or by calling 515-284-8549. Read past reports at DesMoinesRegister.com/Readers Watchdog.